Judicial corruption has been document in India and throughout the world.A
United Nations report states: "Corruption is universal. Nowadays, all States,
whether developed or developing, suffer from the same phenomenon to varying
degrees."[2 Although the vast majority of Judges who sited worldwide are
hardworking, intelligent, and honest, it is undisputed that a few Judges are
inappropriately influenced in their decision making. For example, three
California Superior Court state Judges and an attorney were recently
investigated and convicted for their involvement in a corruption scheme.The
Judges received a total of $ 100,000 in gifts from an attorney who had cases
pending before them. Prior to the indictment, the State's Commission on Judicial
Performance investigated the Judges, after which two of the Judges resigned and
one was removed.
In the end, one of the Judges plead guilty pursuant to a plea
bargain, and the other two Judges went to trial and were convicted and sentenced
to 33 and 41 months in prison.A Juror in the cases commented. "We hold
Judges to be above everyone else; they sit on a pedestal."Judicial
corruption not only knocks Judges off these perceived pedestals, but also erodes
respect for law. An editorial, calling for the Judges to be sentenced to Jail,
stated: "We cannot stress enough how important blind Justice is to our society.
If a Judges can be bought off for a few thousand dollars in car repairs and a
membership to a health club, then everybody's rights are in Jeopardy because the
only thing protecting our rights is our Judiciary." Public response to the
trial provides an important example of both the harm corruption causes the
Judiciary's image and the need for judicial accountability.
In the face of the harm caused by judicial corruption, some question
why judicial independence should create a barrier to any potentially effective
means of ensuring judicial accountability. Judicial independence, however,
should not be so lightly dismissed. It, too, is vital for preserving a system of
liberty and rule of law.
Judicial independence has been recognized as a universal human
right: "Everyone is entitled in full equality to a fair and public hearing by an
independent and impartial tribunal...."As stated in the 1995 Principles of
Independence of the Judiciary, signed by thirty-four Chief Justices of Asia and
the Pacific, Judicial independence requires that
(a) the Judiciary shall decide matter before it in accordance
with its impartial assessment of facts and its understanding of the law without
improper influences, direct or indirect, from any source; and
(b) the Judiciary has jurisdiction, directly by way of review,
over all issues of a Justiciable nature.
So why is judicial independence so important? Maintaining an independent
judiciary is essential to the attainment of the judiciary's rule of law and the
proper performance of its functions in a free society.Such independence
must be guaranteed by the State and enshrined in the constitution or the law so
that any illegal actions by the executive or legislature can be checked. As
Alexander Hamilton pointed out, Limitations on government "can be preserved in
practice no other way than through the medium of courts of justice... Without
this, all the reservations of particular rights or privileges would amount to
Judicial independence ensures that powerful individuals must conform
to the law; with an independent judiciary, no one is above the law and no one is
below the law. Without it, there is little hope for the rule of law. As Lord
Acton memorably stated, "Power tends to corrupt and absolute power corrupts
absolutely."To restrain unauthorized exercise of power effectively, judges
must be beyond the reach of those who would transfer or remove them because of
Thus, the need for judicial independence is not for judge or
the judiciary per se, but for the people. Justice Stephen Breyer explained the
importance of an independent judiciary and the role of judges in the following
George Washington claimed that "the true administration of justice
is the firmest pillar of good government."... The good that proper adjudication
can do for the justice and stability of a country is only attainable, however,
if judges actually decide according to law, and are perceived by everyone around
them to be deciding according to law, rather than according to their own whim or
in compliance with the will of powerful political actors. Judicial independence
provides the organizing concept within which we think about and develop those
institutional assurances that allow judges to fulfill this important social
Judges' "important social role" in the preservation of liberty and
the establishment of a stable government depends on the strength of judicial
independence. "Though individual oppression may now and then proceed from the
courts of justice, the general liberty of the people can never be
endangered..... so long as the judiciary remains truly distinct from both the
legislature and the executive."
Conflict between Judicial Independence and Judicial Accountability
Although both judicial independence and judicial accountability are
vital for maintaining the rule of law, they sometimes seem to conflict.When
misconduct is alleged, there will be a demand for action against the judges in
question, just as there would be against any governmental action. Judicial
independence should not protect a judge from investigation and censure for a
valid charge; judges should not be immune from the demand of justice for
misdeeds. Indeed, there are several valid reasons for censure or removal of a
judge, such as bribery, other corruption, commission of a felony, and senility.
The issue of prime importance, therefore, is how to detect judicial
corruption accurately, to investigate it fairly, and to eradicate it effectively
without eroding an independent judiciary. The executive and legislative branches
should not be able to use investigations as retaliation for unpopular decisions
or to exert subtle pressure on judges through hints or threats of
If judges are guilty of a crime, it stands to reason that they
should be open to criminal prosecution the same as anyone else.But not all
judicial misconduct is criminal. Most governments have some other type of
investigation for lesser judicial misconduct. Various investigatory systems are
possible, but to preserve judicial independence, these investigations should be
left primarily to the judicial branch.Giving power to the executive or
legislative branch to investigate judges for all misconduct can interfere with
an independent judiciary. It provides too ready a tool to harass judges whose
judicial opinions are not consistent with the wishes of political leaders.
Challenges in structuring a workable approach
While various countries can and do take differing approaches to solving problems
of judicial corruption, many common issues and questions remain. A threshold
question, for example, is how to define "corruption" or "misconduct." In the
California judges case, for example, the judges sentencing the former judges
pointed out that "it didn’t' start out as a criminal enterprise, but it
escalated into that."The convicted lawyer was a close social friend of the
judges and gave them gifts, which in the end included the extended loan of a
car, the use of a vacation home, car repairs, furniture, a computer, and other
A related question is what instructions should be given to judges. Judges should
be given notice of what behavior is considered misconduct. Many countries,
including the United States, have written canons of ethics or a code of judicial
conduct.Such codes provide instructions to new judges and can serve as
bases for courses on ethics to present judges. Because "The corrupted and the
corrupter are not accomplices: each is the perpetrator of a distinct offence,
subject to its own procedures and punishments," the judiciary is not the only
organization that can help prevent judicial corruption. Countries should also
examine the role of the bar associations. The bar should be required to pay
close attention to lawyer conduct and determine how it can enforce ethical
conduct of lawyers. Some possibilities for education include requiring a
lawyer’s ethics course in law school, having an ethics examination before
admission to the bar and requiring the taking of ethics courses to maintain a
license to practice. The bar can also have an investigation department within
the bar association, which would have power to disbar lawyers for unethical
conduct with judges.
Judicial Accountability: The Indian Approach
Corruption is eating the vitals of our polity. No institution is free of this
menace. The Supreme Court's observations on the rot in the Allahabad High Court
are disturbing. A Bench consisting of Justice Markandey Katju and Justice Gyan
Sudha Misra said on November 26 that most judges of this High Court are corrupt
and collude with advocates. Remember the historic judgment of Justice
Jagmohan Lal Sinha on June 12, 1975 when he quashed Indira Gandhi’s election to
the Lok Sabha from Rae Bareli? He declared her guilty of electoral corruption
and disqualified her from contesting elections for six years. His bold judgment
shook the country and led to the imposition of Emergency 13 days later.
Many High Court judges are facing charges of corruption. The cases involving
justice of the Calcutta High court, Chief Justice of the Sikkim High court
(formerly of the Karnataka High court) and justice of the Uttarakhand High Court
(formerly of the Punjab and Haryana High court) are all at various stages. The
charge that many former Chief justice of India were corrupt has given a new
twist to judicial corruption. There is also the Rs 23-crore Ghaziabad PE scam in
which a supreme court judge (since retired), seven Allahabad High Court judge
are allegedly involved. The key accused, Ashutosh Asthana, died in jail
mysteriously in October, 2009. He had provided vital documents to the CBI that
established connivance of these judges. Recently, the Supreme Court rejected the
CBI's plea for shifting this case to New Delhi.
Corrupt judges in the higher judiciary can be removed only by
impeachment. However, this method is cumbersome. The problem is not just a
question of devising proposals for removal. The judges (Inquiry) Act, 1968,
reface’s impeachment by judicial inquiry. In Supreme Court Judge v Justice
the inquiry indicted him but the impeachment motion fell
through in parliament in 1992.
The need for an institutional mechanism to deal with cases of
misconduct against a High Court Judge as also the question of interim
arrangement on whether the judge be assigned work pending investigation has long
been felt. A beleaguered judge continuing in office smacks of grave impropriety.
Remember how former Karnataka High Court Chief Justice Continued to attend court
took decisions on the administrative side and even delayed his departure for
The Centre's decision to get up a National Judicial
Oversight Committee (NJOC) to look into complaints against Supreme Court and
High Court judges and impose "minor penalties" or recommend their removal is
welcome. This has been provided for in the judicial Standards and Accountability
Bill 2010 table in the Lok Sabha on December 01 significantly, the Bill is aimed
at replacing the judges (Inquiry) Act, 1968. The NJOC will consist of a Court
judge, the high court justice, an eminent person to be nominated by the
President and the Attorney-General of India (ex-officio).
The NJOC will send every complaint to a scrutiny panel which, in
turn will examine it and report back to it within three months. Based on its
recommendation, the NJOC will get the complaint examined by an investigating
panel. Both the scrutiny and investigating panels can summon people and ask for
public records. They will also have the power of search and seizure.
It is debatable whether the executive should be given a power to
retire judges. This power should remain in the hands of the judiciary itself to
maintain the independence of the judiciary which is the cornerstone of the
constitution. Indeed, any amendment of the constitutional provision of
impeachment will have to pass the test of judicial scrutiny. Otherwise, the
Supreme Court will quash it as null and void for violating the basic structure
of the constitution.
In another scam the President Pratibha Patil has given orders to
C.B.I. to prosecuting former Justice of Utrakhand High Court in connection with
a land scam in Solan (Himachal Pradesh) during her tenure in the Punjab & Haryana
High Court from November 2004 to February 2010. The land deal related to 11.1
Bigha plot reportedly owned by Justice who retired on March 4, 2011, her brother
and relatives in Solan district. The Presidential sanction has been given on the
recommendation of the former Chief Justice of India SH Kapadia and the Law
Further six retired judges of Uttar Pradesh have been charge sheeted by the
C.B.I. in the Ghaziabad PF scam case. Initially, the C.B.I. wanted to prosecute
as many as 35 judges, retired or sitting, but the Supreme Court granted the
permission for proceeding against only six of them. Former Law minister Shanti
Bhushan has alleged that many of the former Chief Justices were corrupted.
Accountability of Legal Professionals
The Supreme Court of India's observation that "something is rotten"
in the Allahabad High court and Chief justice of India justice S.H. Kapadia's
speech during a national Law Day function (both on November 26,2010) that good
judges can be appointed within the current system in the next two years when he
is the CJI are laudable. A deeper analysis of the two statements can reveal
significant pointers to the state of judiciary in India today.
Justice Kapadia has promised that good judges can be appointed
within the current system "in the next two years" when (he is) is the Chief
Justice of India. The first inference implies that the current system is person
dependent. The basic rationale for putting system in place is to make them free
of individual idiosyncrasies but is also accepted that systems are as good as
the people who use them Granville Austin aptly said' "(C)institutions", however
'living'', are inert. They do not work, they are worked." But there is a
difference, however subtle, between constitutions and institutional systems. The
main expectation form the latter is that they will work independent of human
follies and weaknesses. If the current appointment system for higher judiciary
is susceptible to human frailties then there is ample justification to try a new
This leaves one important issue of higher judicial appointments
unattended and that is the sources of these appointments. On November 26, the
Bar Council of India had decided to postpone the proposed All India Bar
Examination form December 5 to March 5, 2011. While this, by itself, may be a
relatively innocuous action, it does point to the state of affairs of the
profession of law which suffers from many infirmities starting with education
for LL.B., registration of lawyers, and practices followed by lawyers in courts
and outside. The action of various regulatory authorities of various regulatory
authorities, The Bar Councils, and various Bar Associations are not always above
board. And it may not be out of place to say that something is wrong with the
country's legal profession. It is the Bar that is the major source of
recruitment to the higher judiciary. Therefore, reforming the system of
appointment to higher judiciary should begin with the reform of the profession
Judicial independence, correctly understood, is not an end in itself. Although
it is sometimes characterized as such in the flowery speeches of public
officials, most thoughtful scholars recognize that judicial independence is an
instrumental value-a means to achieve other ends. Given these objectives, one
may fairly conclude that judges who are subject to intimidation from outsiders
interested in the outcomes of cases the judges decide lack the independence
necessary to follow the facts and law. At the same time, one may just as fairly
conclude that judges who are so independent that they may disregard the law
altogether without fear of reprisal likewise undermine the rule of law values
that judicial independence is supposed to further. Judicial Accountability
promotes the rule of law by deterring conduct that might compromise judicial
independence, integrity, and impartiality. To say that judicial accountability
promotes judicial independence seems counter intuitive. Accountability does,
after all, diminish a judge's literal independence: the judge who is made
accountable to an impeachment process, for instance, loses his/her
‘independence’ to take bribes with impunity. But properly employed,
Accountability merely diminishes a judge's freedom to make herself dependent on
inappropriate internal or external influences that might interfere with her
capacity to follow the rule of law. By deterring bribery, favoritism, bias and
so on, Accountability promotes the kind of independence needed for judges to
adhere to the rule of law.
Bracy v Gramely, 117 S. Ct. 1793 (1997).
 U.N Report p. 79
 Anne Krueger & Valerie Alvord, Former San Diego Judges Guilty,
San Diego Magazine Union-Trib., Oct. 19, 1996, at A-1
 Anne Krueger, Court Corruption Scandal Led to Reform, San Diego
Magazine Union-Trib., Oct. 20, 1996, at A-1
 Ann Krueger & Valerie Alvord, Two Ex-Judges, Lawyer Ordered
Imprisoned, But Remain Free, S.D Union-Trib., Feb. 6, 1997, at A-1
 Leslie Wolf, Judging Former Judges Was Scary, Heart-Rending for
"Common People," San Diego Magazine Union-Trib., Oct. 19, 1996, at A-1
 A Subversion of Justice, San Diego Magazine Union-Trib., Oct.
19, 1996, at B-8
 Universal Declaration of Human Rights, G.A Res. 217, art. 10
(1948); see International Covenant of Civil and Political Rights, 999 U.N.T.S.
171, Art. 14(1), 61.L.M. 368 (1967)
 The Statement grew out of a ‘joint statement of principles of
independence of the judiciary’ adopted in Beijing at the 6th Conference of Chief
Justices of Asia and the Pacific, on 19 August 1995.
 Principles of Independence of the Judiciary, signed by Chief
Justice of Asia and the Pacific , originally adopted in Beijing, China, in 1995.
 Paul Ricoeur, The Political Paradox, in Legitimacy and the State
(William Connolly ed., (1984)Oxford University Press, pp. 250-270 Russell
wheeler, Judicial Administration: Its Relation to judicial Independence National
Centre for State Courts, p. 26(1988).
 Hamilton, The Federalist No. 78, A 465, 466 (Clinton
 Justin Kaplan,'Bartlett's Familiar Quotations'521:5(1992).
 Stephen G. Breyer, Judicial independence in the United State, 40
St. Louis U.L.J. 989, 996 (1996).
Dato Param Cumaraswamy,'Tension between Judicial Independence
and Judicial Accountability', vol. 2, no. 5, October 2003,
 Reid H. Weingarten, Judicial Misconduct: A view From the
Department of Justice, 76 Kentuyay Law Journal,799 (1988).
 Jeffrey. M. Shaman Et AL., Federal Judicial Ethics: Choices
Made; Choices Due, in Ethics in the Courts: Plicing Behavior in the Federal
Judiciary 1, 3-4 (1990)
 America's God and Country: Encyclopedia of Questions 247 (1994).
 Rees v. Crane 1994 (1) All. ER 833.
 E.g., Yang D1-Pertuan Agong, Judges' Code of Ethics (Malaysia);
Code of Conduct for United States Judges (1997); see Shaman, supra note 19, 1.02
(providing a history of the development of the United States Code).
 Corruption in judiciary : Time for action, The Tribune
Chandigarh December 3,2010 By V. Eshwar Anand, p. 13.
 News The Tribune Chandigarh, March 2, 2011, p. 1.
 Chhokar Jagdeep S., Reform Should Begin with the Profession of
Law. The Tribune Chandigarh, December 3, 2010, p. 11.
About The Author:
Dr.Sant Lal Nirvaan -
Assistant Professor Institute of Law Kurukshetra University Kurukshetra